Wednesday, June 25, 2014

Lyle Denniston of SCOTUSblog had a post Monday headed "Reviving an old constitutional idea?" He begins:

It has been almost eighty years since the Supreme Court struck down a federal law because a private organization was wrongly using the powers of government, but on Monday the Court said it would consider anew that nearly abandoned approach. It will do so in a case involving the quality of rail passenger service on the Amtrak system.

That was one of three new cases the Court agreed on Monday to hear, with decisions expected in the Term that opens next October. In the others, the Court is to decide what proof that federal prosecutors must offer to get a longer sentence when an alleged robber draws someone else into the crime, resulting in injury or death (Whitfield v. United States), and will rule on whether a jury or a judge should decide the right of an owner of an older trademark to update it and still keep its legal status (Hana Financial v. Hana Bank).

The Amtrak case (U.S. Department of Transportation v. Association of American Railroads) led to a decision by the U.S. Court of Appeals for the District of Columbia Circuit that Amtrak was given too much of a role in writing performance standards for the operation of its rail passenger trains. The Department’s appeal is an attempt to get the Court to revive a 2009 law, and the performance rules written under that law in 2010, that fell in the D.C. Circuit’s use of the so-called “non-delegation doctrine.”

That doctrine is a constitutional limit on Congress’s authority to hand off to someone else — a private entity or another branch of government — its power to write the nation’s governing laws. It was used by the Supreme Court repeatedly during New Deal days, in striking down President Franklin Roosevelt’s programs for dealing with the Great Depression. It has not been used since to nullify any federal law.